Top legal scholars say the fight for South Africa to stay in the International Criminal Court is just beginning, a day after the government officially revoked its notice of intent to withdraw from the war crimes court.
That decision came after a South African court ruled last month that that notice, given by South Africa’s Cabinet, was unconstitutional, and the matter needs to go through parliament. At the time, legal activists praised the ruling because they said it showed South Africa’s commitment to following proper procedures.
But retired Constitutional Court justice Zak Yacoob says this is a hollow victory.
“That’s not a victory for us, ultimately,” he said Wednesday, during a news conference at which a top group of international jurists, including six retired members of South Africa’s Constitutional Court, presented a submission to South Africa’s parliament to remain in the International Criminal Court.
“Ultimately it doesn’t matter in real, substantial terms whether we leave the process by not having followed the proper process or whether we leave having followed the proper process,” he said. “I suppose the first is marginally worse, but in the end, our view is that whether we follow the process or not, leaving will have catastrophic international consequences.”
The ruling African National Congress, however, holds a strong majority and is firmly in favor of leaving.
South Africa announced its intent to leave the court in 2015, after a disagreement with the court over the government’s refusal to act on an ICC arrest warrant for Sudan President Omar al-Bashir during an African Union summit he attended in Johannesburg.
African nations have frequently accused the court of targeting Africans. The court disputes this charge and notes it is investigating situations in a number of countries, but has yet to try a case from a non-African nation.
The African Union voted last month to support any member who wanted to withdraw from the war crimes court. Only Burundi and South Africa have announced they will do so, after Gambia’s new president reversed the previous president’s decision to withdraw.
Arnold Tsunga, director of the Africa Regional Program of the International Commission of Jurists, says the court isn’t perfect. Many critics say it is inefficient. Others say the court’s reliance on the U.N. Security Council, which is allowed to refer cases to the court, is problematic since three of the five permanent members of the council do not belong to the international court themselves.
But Tsunga says that as a leading democracy with a respected legal system, South Africa can play a better role reforming it from within.
Calls for reform
“Coming out of the ICC, rather than reforming it and making it more efficient and fit for purpose in terms of tackling impunity, is not the way to go,” he said. “And I think it’s not desirable, on the African continent, to have South Africa leading only a country like Burundi in the pursuit of impunity. …I find that to be most unfortunate, because there’s absolutely no way, no way at all, that the Burundian government and the danger that it presents to its citizens can be a country that can be in the same league as South Africa.”
Yacoob says he will not give up, whatever parliament decides. The brief submitted by top jurists warns that if South Africa pulls out of the court, it will have no other legitimate venue to try serious international crimes.
“If parliament takes a decision to leave now, that for us, I think, is not the end of the matter,” he said.”Because then begins the campaign to persuade the country to join again.So ultimately, this is not a campaign which has an end.It doesn’t end at the point when parliament makes its decision, even if it decides against us.We will continue with this campaign until there is victory.”
He may have a long fight ahead of him. Parliament is scheduled to discuss the matter and South African authorities have been summoned to the Hague-based court on April 7 to explain their failure to arrest Bashir.
Those proceedings may lift the curtain on the backstage machinations of the dramatic 48 hours that Bashir spent in South Africa, and how he managed to elude publicity and leave safely, despite a court order prohibiting his departure.
“I imagine the hearing will be quite interesting,” said Kaajal Ramjathan-Keogh, executive director of the Southern Africa Litigation Center.